Failed Exam A Test Of Free Speech

MADISON, WIS. — A former doctoral student, angry at being denied his degree, is suing the professors who failed him on charges that they violated his right to free speech.

The suit, legal experts say, is believed to be the first ``grade case``

based solely on 1st Amendment arguments to be slated for trial. And, they added, it could set the precedent for a deluge of lawsuits by other dissatisfied students.

``The number of challenges could be astronomical,`` said LeRoy Dalton, an assistant Wisconsin attorney general who is defending the University of Wisconsin and five university professors.

The suit was filed by Gary Horowitz on March 5, 1982, three years after he was told he had failed a preliminary examination, which in effect dismissed him from the doctoral program in the university`s Department of Educational Policy Studies, whose students are mostly instructors and researchers.

Horowitz, of Glendale, Wis., a Milwaukee suburb, contends that he was failed because he held views contrary to his professors` and that he expressed those views on an essay test he was required to pass before being allowed to write his doctoral dissertation.

A Dane County Circuit Court judge dismissed Horowitz`s suit in December, 1983. The Wisconsin Court of Appeals, however, overturned that decision last February and said the case should go to trial. In May, the Wisconsin Supreme Court let the appellate ruling stand.

In addition to seeking $4 million in damages from the university and the professors, Horowitz, who runs an insurance and accounting business from his home, is asking that he be awarded his doctorate. No trial date has been set. Other lawsuits brought by students contesting a grade or dismissal have argued that the student`s constitutional right to due process had been violated. Breach of contract also has been alleged. Neither argument has been very successful, however.

In a decision in a case brought by a woman expelled from the University of Missouri`s medical school, the U.S. Supreme Court ruled in 1978 that a student dismissed for academic reasons has no right to a hearing.

The breach-of-contract argument--that a university enters an implied contract with a student to provide an education culminating with a degree

--also has been generally rejected by state and federal judges, according to attorneys.

``The courts have been very, very hesitant to interfere with matters involving academic judgment, deferring to the good-faith decision-making of the institution,`` said George Shur, legal counsel for Northern Illinois University in De Kalb and second vice president of the National Association of College and University Attorneys.

In Horowitz`s case, Shur said, ``clearly he`s got to prove there was a nexus between the differing beliefs and the adverse decision and, indeed, there was no other reason for the action. That`s pretty rough.``

Horowitz enrolled in the doctoral program in the fall of 1977, after receiving bachelor`s and master`s degrees, both with honors, from the University of Wisconsin.

In January, 1979, after completing his course work, Horowitz asked professor Herbert Kliebard to set up a committee to administer his preliminary examination.

The committee, composed of professors Kliebard and Vernon Haubrich and assistant professor Michael Olneck, gave Horowitz a three-question essay test on Jan. 29 of that year. He had three weeks to research and answer the questions.

In a recent interview, Horowitz said the questions were so ``global``

that they were ``impossible to answer.``

According to Horowitz, he was asked to evaluate the different theories held by major intelligence-testing companies; trace the history of the intent of U.S. Supreme Court integration cases, and evaluate whether the American school system has done its job.

He asserts the test was designed to guarantee his failure because of differences he had had the previous semester with Olneck. Horowitz said he believes that intelligence tests cannot measure intelligence, only aptitude, which contradicted Olneck.

Horowitz said he also believes that the American school system has helped assimilate immigrants into society, while he said his professors taught that the schools did a poor job.

He turned in his exam on Feb. 19. Two weeks later, he was told he had failed.

After the test, Horowitz said, department chairman Karl Kaestle and another professor, Daniel Pekarsky, suggested to others that Horowitz was having a nervous breakdown and needed therapy.

Kaestle and Pekarsky acknowledged in affidavits that they suggested to a campus counseling group that Horowitz seek treatment but denied saying he was having a breakdown.

The professors have refused to comment directly on the case while the suit is pending.

But in an affidavit, Olneck said: ``The implication . . . is that this examination would have received my favorable judgment had it been submitted by a student other than the plaintiff. That is not true; I would have failed this examination no matter who submitted it.``

As to the precedent the suit might set, Olneck said in an interview,

``Everyone in academia has to be concerned. It appears to us to open a door that certainly could be abused.``